Legal Research
Cases
Edel Metals Group Ltd v Geier Ltd

Edel Metals Group Ltd v Geier Ltd

Link copied

Case Copied 12 November 2018 38 min read

Contents

On this page

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA136/2017
[2018] NZCA 494

BETWEEN	EDEL METALS GROUP LIMITED First Appellant JOHN ANDREW SORENSEN Second Appellant
AND	GEIER LIMITED First Respondent MICHAEL JOHN JACOMB, TRENA KATHLEEN JACOMB AND PETER REGINALD RICHARDSON AS TRUSTEES OF THE GENSET TRUST Second Respondents

CA490/2017
BETWEEN	MICHAEL JOHN JACOMB, TRENA KATHLEEN JACOMB AND PETER REGINALD RICHARDSON AS TRUSTEES OF THE GENSET TRUST Appellants
AND	EDEL METALS GROUP LIMITED First Respondent GEIER LIMITED Second Respondent JOHN ANDREW SORENSEN Third Respondent DONALD GIBSON Fourth Respondent

Hearing:	17 April 2018
Court:	Cooper, Dobson and Toogood JJ
Counsel:	D H McLellan QC and J C Adams for Appellants in CA136/2017 and First and Third Respondents in CA490/2017 N W Ingram QC and C F Foote for Appellants in CA490/2017 and Second Respondents in CA136/2017 No appearance for First Respondent in CA136/2017 and Second and Fourth Respondents in CA490/2017
Judgment:	12 November 2018 at 3.30 pm

JUDGMENT OF THE COURT

AThe appeal in CA136/2017 is allowed. The High Court is to determine afresh the quantum of the reasonable costs payable to the second respondents on an indemnity basis.
BThe second respondents must pay the appellants costs for a standard appeal on a band A basis and usual disbursements in respect of the appeal in CA136/2017. We certify for two counsel. Costs in the High Court are to be determined in that Court.
CThe appeal in CA490/2017 is allowed in part. The High Court is to determine what is a reasonable amount for the third respondent to pay as indemnity costs in respect of the application for security for costs made by the appellants against the first respondent. The appeal is otherwise dismissed.
DWe make no order for costs in respect of the appeal in CA490/2017. Costs in the High Court are to be determined in that Court.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Table of Contents

Para No
Introduction  [1]
Appeal CA136/2017  [7]
         Background  [9]
The argument on appeal  [30]
         Indemnity costs  [31]
         Costs against a non-party  [50]
         Quantum  [54]
Appeal CA490/2017  [68]
Result  [73]

Introduction

These two appeals arise out of judgments delivered by Fogarty J on 22 February and 4 August 2017.[1]
[1]Edel Metals Group Ltd v Geier Ltd [2017] NZHC 225 (first High Court judgment); and Edel Metals Group Ltd v Geier Ltd [2017] NZHC 1833 (second High Court judgment).
The judgments were delivered after the appellants in CA490/2017 (the Genset Trustees, who were the defendants in the High Court) had applied to strike out the statement of claim filed against them and had also sought increased or indemnity costs against the appellants in CA136/2017. The first appellant in CA136/2017, Edel Metals Group Ltd (EMG), was the plaintiff in the High Court. John Andrew Sorensen was its sole director and not named as a plaintiff in the proceeding.
EMG did not oppose the application for strike-out, nor did it oppose an order that it pay costs on a category…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Edel Metals Group Ltd v Geier Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZCA 494
Decision Date: 12 November 2018

CaseChat Overview and Summary

This appeal concerns two judgments made by Fogarty J in the High Court at Auckland. The judgments were delivered in a proceeding brought by Edel Metals Group Ltd (EMG) against Geier Ltd and the Genset Trustees (the defendants in the High Court). EMG sought a declaration of the rights of the parties to 100 million shares in the company, together with interest and costs. The Genset Trustees opposed the claim and sought to have it struck out on the basis that it was an abuse of process. The proceeding was ultimately struck out but the Genset Trustees were ordered to pay EMG indemnity costs on the basis that the proceeding had been improperly brought and continued. The Genset Trustees appealed against the costs order and EMG and Mr Sorensen (EMG's sole director) cross-appealed against the striking out of the claim and the costs order. Both appeals were heard together in this Court. The appeal by the Genset Trustees was allowed in part and the cross-appeal by EMG and Mr Sorensen was allowed. The Court of Appeal orders that the High Court is to determine afresh the quantum of the reasonable costs payable to the Genset Trustees on an indemnity basis. The Genset Trustees must pay EMG and Mr Sorensen costs for a standard appeal on a band A basis and usual disbursements in respect of the appeal in CA136/2017. The appeal in CA490/2017 is allowed in part. The High Court is to determine what is a reasonable amount for Mr Sorensen to pay as indemnity costs in respect of the application for security for costs made by the Genset Trustees against EMG. The appeal is otherwise dismissed. Given each party has had a measure of success in respect of the appeal in CA490/2017, we make no order for costs in respect of that appeal. Costs in the High Court are to be determined in that Court.

Orders